State of Haryana vs Hans Raj

S.C. Malte, J.

Criminal Appeal No. 465DBA of 1984 and Criminal Appeal No. 466DBA of 1984 are being disposed of by this common judgment because in both these matters the accused is the same and the nature of offence allegedly committed by him is the same. The accusedrespondent was employed as Cashier in the Pastana Cooperative Agricultural Service Society at village Pastana. While working in his capacity as Cashier, he committed the criminal breach of trust of certain amount as specified in the charge framed against him in both these cases. It is not necessary to go into the details of the amount mis appropriated by him, because the appeals are now confined to quite limited aspect. Suffice to mention that in the trial Court the charge framed against the accused was under section 409 I.P.C. The Trial Court convicted the accused of the said charge. Against that judgment, the accused preferred appeals in the Sessions Court. These appeals were Criminal Appeal No. 39 of 1983 and Criminal Appeal No. 40 of 1983 in the Court of Sessions Judge, Karnal. The Additional Sessions Judge, Karnal, disposed of this matter by holding the accused guilty under section 408 I.P.C. Thus, in both these matters the accused was convicted and sentenced by the Additional Sessions Judge, Karnal, under Section 408 I.P.C. The State has now preferred these appeals on the ground that the conviction should have been based under Section 409 I.P.C. instead of under Section 408 I.P.C. The contention raised was that the accused, while working as Cashier of a Cooperative Society, was liable to be convicted under Section 409 I.P.C.

The question regarding applicability of Section 409 I.P.C. in a case where an employee of a Cooperative Society is involved on the charge of criminal breach of trust, is settled at rest by the Full Bench judgment of this Court reported in (State of Punjab v. Kesri Chand and another, 1987(2) Recent Criminal Reports 297 ). In that case, their Lordships considered the position of officebearers of a Cooperative Society. Their Lordships observed that a Cooperative Society, is a group of individuals who seek a status as a body corporate under the Cooperative Society Act and do not owe their existence to a corporation established by or under the Act. Their Lordships further observed that the President and the Secretary of the Cooperative Society are not public servants within the meaning of clause 12(b) of Section 21 of the Indian Penal Code, and the provisions of Section 409 I.P.C. will not be attracted in a case of offence of criminal breach of trust. In this case, we find that the ratio of the abovementioned case (State of Punjab v. Kesri Chand and another) applies. We, therefore, find that there was no error committed by the Additional Sessions Judge while convicting the accused under section 408 I.P.C.

It was further argued that the benefit of Probation of Offenders Act should not be extended to the accused. While considering the quantum of sentence, the Additional Sessions Judge took into consideration that the appellant has deposited part of the amount alleged to have been embezzled by him. The alleged embezzlement had taken place long back in 1972 and 1973. The judgment of the Additional Sessions Judge, Karnal, was delivered on 5.4.1984. Now it is quite clear that more than twenty years have elapsed since the alleged embezzlement of the amount in question. After considering all these aspects together, we are of the considered view that there is no need to interfere in the decision given by the Additional Sessions Judge, Karnal. We, therefore, dismiss these appeals.